Thursday, September 17, 2009

[These are my raw notes from the courtroom; they will often consist or keywords and phrases and are not a comprehensive log or transcript.]

10:00 AM: Like me, some attorneys on this case thought that Judge Gary Lancaster's ruling would be filed electronically. Word came that the attorneys are to be here in the judge's courtroom. Once again, the courtroom is full and everyone is anticipating the judge entering shortly.

10:05 AM : "All rise. This honorable court is now in session..."

Judge: ordinary in a case like this I would draft a written opinion.. since time is of the essence here, benefit the parties to have a ruling. The certified transcript will serve as the ruling of thecourt.

Judge: Notes that some of the original plaintiffs have been granted permits since the suit was filed. (Remaining) plaintiffs allege their constitutional 1st and 14th amendment rights are being violated.

Judge says plaintiffs seek:

-Permit CodePink to stage event in Point State Park from Sunday 7pm to Tuesday 7pm.

-Permit Thomas Merton Center to March from City County Building to 7th Street Bridge and rally at bridge.

-Permit camping overnight at Schenley Park in Oakland.

Judge: Court has analyzed claims presented at hearing. Plaintiffs must demonstrate likelihood of ultimate success on merits, irreparable harm if not granted, public interest be served by granting relief.

Judge: a preliminary injunction is not a matter of right.

*******

Judge: On Thomas Merton Center request to march from Oakland to City County Building to 7th St Bridge. Estimate that 5,000 to 7,000 would participate in the march.

Judge: Rights under 1st amendment are not absolute. Plaintiffs do not allege restrictions are content based. Government interest in safety and in protecting visiting leaders are valid.

Judge: Defendants have legitimate interest in establishing a security perimeter and in making sure 7th Street Bridge remain passable. City showed would significantly burden already strained police. Bridge has only to points of entry and exit.

Judge: Defendants have demonstrated not overly broad. Refusal to allow thousands of protesters to stop on the bridge is not overly broad.

Judge: Defendants have provided evidence justifying the security perimeter. The heart of plaintiff's argument is that it would be more convenient/less restrictive if their request was granted. Modern technology makes being in proximity less critical. Media outlets will be able to cover... info can be spread via YouTube, Facebook, for example. 1st amendment rights would not be violated by restrictions.

*******

Judge: On request for order to allow them to camp overnight in Schenley Park. He has serious doubts that sleeping overnight is "expressive conduct" so that the 1st amendment applies. Plaintiffs have not met that burden. Evidence is that their request is to accommodate people traveling to Pittsburgh to protest who have no other place to stay. Says they could camp at state park would camping is permitted for example. No evidence that overnight camping would send any message not sent during daylight hours. Even if camping is expressive conduct, no evidence that city prohibition on camping and park hours is content-based. 300 to 600 camping for six days would be burden on city.

Judge: City has legitimate interest in making sure its parks are adequately protected. If this the were to allow this group to camp, based on expressive conduct, no doubt other groups would press for same... create burden on city.

City's action does not violate the 1st amendment. The city does not have a constitutional obligation to provide out of town protesters living accommodations.

*******

Judge: On CodePink and Point State Park. Notes Junior Great Race has permit for weekend before and Great Race for weekend after. Plaintiff argues that granting of permit to event associated with PA State Senator Jim Ferlo is content based. Judge says plaintiffs are not likely to prevail on this. No evidence city denied CodePink's permit based on content of their message. Finds city acted in a content neutral manner. But city has not shown that it's actions were narrowly tailored.

Evidence shows breakdown from Junior Great Race is completed by Sunday 5pm. Denial is not narrowly tailored. Denial would be harm first amendment rights. Public interest would be best served by granting permit to CodePink. Ordering city to permit CodePink to use park from after breakdown from race. From 7pm Sunday to 7pm Tuesday during regular park hours.

Wednesday, September 16, 2009

[These are my raw notes from the courtroom; they will often consist or keywords and phrases and are not a comprehensive log or transcript.]

3:08 PM Court back in Session.

Officer Christie Gasiorowski back on stand, this time as witness for the city. Questioning by City Assistant City Solicitor Michael Kennedy.Establishes that -- while approved -- the permit for an overnight camping event this year was not actually issued.

Q: what steps taken to accommodate Thomas Merton Center march? A: Wrote up alternative routes, should have gotten them today.Mapped route from 7th St Bridge to Buncher lot. Distance from Fifth & Craft to Buncher lot along her proposed routing is 3.8 miles. (Note: that appears to involve crossing over to the North Shore and back.)

Testifies it's very labor intensive to provide police presence for these events.

Asks about plaintiff request to stop and rally at 7th Street Bridge. She testifies that river walk on North Shore is great location providing sight and sound access to convention center.She has concerns about stop and rally at bridge. Exit only at either end. Says "if a molotov cocktail were to go off" there could be a panic and stampede. Doesn't think city could provide for safety if they stopped and rallied on the bridge.

3:18 PM cross-examination by Vic Walczak of the ACLU.

On the overnight permit -- Walczak : never used because they didn't pay security fee? Officer acknowledges, but says the permit was never approved because it was not signed.Walczak: There's a piece of paper that was signed that was sent out to somebody. Says this was not supplied to us by the city -- "We got it from them (the applicants), your honor."

Asks about her distance calculations. Walczak say it appears Craft and Fifth to City County Building is about 1.9 miles. How did you get to the 7th Street Bridge? .7 miles to bridge? 0.4 to cross pan of bridge/ridge and .4 back, not counting distance to cover on the North Side, right? A: Possibly.

Walczak: You're suggesting it's too labor intensive for the city to provide for them to stop on the 7th Street Bridge? A: That's one of the issues we have, yes.

Q: The city's going to provide security for the march (the city suggests) to the North Side? A: Correct.If the Merton Center has 3,000 to 5,000 people, do you believe the river walk would provide space for that many people. A: Hasn't evaluated, believes it can.Walczak: If people have to spread out over 4 to 5 blocks on river walk by Alcoa, that would require police security, would it not. People could jump in river there, could they not? A: Acknowledges they could.

...

Walczak asks -- no matter where march ends up, it will require police presence to keep people out of harm's way? Officer Gasiorowski: correct.

Walczak: the concern is about safety of the demonstrators, not of the G-20 Summit correct? Officer: that's correct. But she says Secret Service has some concerns about timing in relation to First Lady's visit to the Warhol.

Walczak: Asks about people filling bridges to watch fireworks. Officer Gasiorowski acknowledges they may. Appears to say that city may not encourage (I could not hear her answer clearly).

...

The attorney for the Secret Service -- Albert W. Schollaert of the U.S. Attorney's Office - is now questioning Officer Gasiorowski.Going over Google maps estimates of distances.

3:43 PM : Judge Lancaster questions officer about why she's concerned people may fall off the bridge. She answers that if something happens, she doesn't think the two ends of the bridge would accommodate a mad rush of people.Officer Gasiorowski's testimony has ended.

3:44 PM Gregory Daley is called as a witness for the city. Supervisor for City Dept of Public Works.Schenley Park comes within his area of responsibility for clean up. Describes the 2007 occasion when a group was allowed to camp there overnight. Says those organizers never cleaned up and city workers had to work all day to clean up the area and haul away debris.

3:53 Pittsburgh Police Assistant Chief William Bochter takes the stand as a witness for the city. Oversees the operations branch. He's the co-chair of the civil disturbance sub-committee for the G-20.

Q: A: I have a lot of issues with a rally of 3 to 5,000 people taking place on any bridge in the city, with our "manpower problems". Corrects self to "shortfalls".Acknowledges most protesters will protest peacefully. Says they are very concerned about those who may intend to cause trouble. Says there have been cases elsewhere where people climb bridge superstructures. Concerned about safety of trying to get to them with crowds of thousands. If emergency, there is no access for emergency vehicles. Says when they to disperse a crowd, they always give multiple routes for people to disperse. Chief Bochter If they have to disperse a crowd, there's only one route.

Chief Bochter says having to man another site in addition to strip district lot and north shore would spread them thin.

Under questioning, says he's concerned about bad people infiltrate peaceful groups, with a different message -- one of violence.

4:00 PM Cross examination by Vic Walczak of ACLU.

Chief Bochter says there will, in fact, be a police presence on every bridge in Pittsburgh during the G-20 summit.

Walczak asks about differences in police approach between a march across the bridge and a stop and rally on the bridge.Chief Bochter says they would keep lanes open during a march, but would not be able to do so in a rally.

4:05 PM Chief Bochter has ended. City Assistant City Solicitor Michael Kennedy says the city rests.

Walczak says he'd like to raise one point of information about the Secret Service representation of distances involved in varous routes.

Judge Lancaster has questions for city's attorneys.-What's basis for denying use of Point State Park Sunday evening (before closing), Monday, and Tuesday? City attorney answers that city crew needs wiggle room in time in case of bad weather. Says there are dangers in relying on the best case scenario, and then having the worst case arrive.

Judge: I would say that if next week our biggest problem is a schedule conflict between CodePink and the Junior Great Race, we should be thankful.

Judge to protesters attorneys: What is city's alternative routes an affront to 1st amendment rights?

Lobel: Says question isn't whether city locations "might be okay", the real question is why marching across the bridge is acceptable, but a brief rally there is not.As for someone jumping off or climbing bridge, if you used that basis -- (that such a thing *might* happen) -- you could preclude *anything* from being granted.

Judge: the city has offered CodePink to use Point Park Tuesday and Wednesday, sharing on Wednesday with Ferlo's group? Answer establishes they don't want to get swallowed up by someone else's event.Attorneys for protesters say they believe they've proven there was clear favoritism and bias in granting of permits. Approving a large event for Ferlo on Wednesday, and not a smaller group on Monday and Tuesday.

Judge Lancaster: says he will place his ruling on record at 10 AM tomorrow.

[I'm posting this from home this evening, but I believe the hearing concluded at about twenty minutes after 4.]

[These are my raw notes from the courtroom; they will often consist or keywords and phrases and are not a comprehensive log or transcript.]

1:49 PM Peter Shell of the Thomas Merton Center is called as a witness by ACLU Attorney Vic Walczak.Shell has been active in Merton Center since 1999. Now co-chair of the anti-war committee of the Thomas Merton Center.Says its a local social justice non-profit organization dating back to 1972. Mostly volunteers. Says center has sponsored "certainly over a hundred" marches and rallies over the years.

Mailed in permit application July 24th by certified mail. Calling it a "people's march", "money for people, not for war".Would start with rally at noon at Fifth and Craft in Oakland. A feeder march from Freedom Corner in the Hill District would merge with them, with all arriving at the City County Building.Had originally requested to march down Grant Street to the Federal Building and rally there.

Shell testifies

Feels G-20 is an "illegitimate organization". Want to go to City County Building to express disapproval of city and county's cooperation with G-20.

Walczak: at issue is third leg of march -- where would go after the City County Building.

Asks about the Buncher parking lot in the Strip District. (The lot is being offered by the city to protesters a place within sight and sound of the convention center.) Shell: No viable route offered by the city to get to the lot.

Walczak: there have been two proposed routes suggested by city -- through Polish Hill from Oakland to get to Buncher lot. Shell testifies it would

Walczak: City also suggested route of Over 7th Street Bridge, down General Robinson Street, back across 16th Street Bridge to Strip? A: Yes, but that would also add 3.8 miles to trip and hills would not be possible for older marches.

Shell: wants to protest in downtown as a center of corporate and government power.

Walczak: asks about protest group's latest proposal.

Shell: they propose to stop on the 7th Street Bridge. Says its better than city's suggestion of North Shore walking and bike trail. He doesn't think it would safely accommodate several thousand people.

2:03 PM: Cross examination of Shell by John Dogherty of the City of Pittsburgh law department.

Q: You've been approved for leg one and leg two of your proposed route? A: Told that, but not seen permit.

You've taken it upon yourself to advertise and promote your event, even though you did not get formal approval? A: Waiting for approval would not have left enough time. Feels was reasonable, based on city's saying it would approve Oakland to Downtown route.

Shell: If we were given a permit to stop and rally on the 7th Street Bridge, they would withdrawl permit request for other routes.

Doughterty: You don't want to march your people into a dead end? A: Yes.Dougherty asks if North Shore river trail would offer better sight and sound that 7th Street Bridge.Shell answers that they're concerned about safety of marchers on the river trail (because of the size of the crowd).

Dougherty: You anticipate people taking part in your march who are not part of the Thomas Merton Center? A: Yes. Dougherty suggests there could be a danger posed by those other participants, such as jumping from bridge.

2:13 PM

Next witness: Pittburgh Police Officer Gazarowski (Spelling? The officer was not at the courtroom microphone when she was sworn in. I couldn't hear her first name or the spelling of her last name).Police bureau's representative on the city's special events committee.Walczak: past practice when more than one application comes in is to grant the first one in? A: yes.Officer testifies she was the one who applied for permit for Pittsburgh Police to use Point State Park.

Walczak: Plan is for city police to use the fountain side of the park as a staging area? A: Yes. Q: Don't anticipate it wlll interfere with use of entrance side of park? A: Correct.

Walczak: Permit request from Ferlo that came in August 10th was for one day -- September 23rd, correct? A: Yes.

Officer says she stamped the CodePink permit application as arriving August 24th.Says 3 Rivers Climate Convergence request also came in on August 24th.

CodePink asked for Sunday to Friday.Walczak: Ferlo did not ask for Sunday, Monday, Tuesday -- Code Pink asked for those dates first? Officer answers that of the three -- but indicates that Junior Great Race filed first for Sunday.

Walczak: Shows application for Junior Great Race. Officer confirms the permits is for only until 1 PM on Sunday.

....

Walczak asks about Public Safety Director Huss's reconsideration and approval of Ferlo's Wednesday, September 25th permit request. Officer confirms that she and the city's special events committee did not have a role in approving the Ferlo permit.

Walczak: Asks whether CodePink's permit application and the 3 Rivers Climate Conversion application for Point State Park were ever presented to the city's special events committee. The officer says she personally looked at it, but doesn't recall either way whether she presented them to committee.

Walczak: the process used for Senator Ferlo's permit application was never used for the applications from CodePink or 3 Rivers Climate Conversion? Officer indicates it was not.

Questions now turn to the Thomas Merton Center's march application.

Walczak: The city cannot grant a permit that crosses through the Secret Service security perimeter? Officer answers that is correct.

Q: What is the route that you suggested? A: Fifth Avenue to Smithfield, to Seventh Street Bridge, to North Shore...etc.

2:35 PM

[These are my raw notes from the courtroom; they will often consist or keywords and phrases and are not a comprehensive log or transcript.]

Walczak: There's no outright prohibition to going on the 7th Street Bridge? A: Not to my knowledge.

Officer: Merton Center March might conflict with First Lady's visit to the Warhol... but she says they should be able to accomodate.

Walczak: Asks if any other groups besides G-20 protesters have applied to use city parks overnight? She indicates she doesn't believe so.

Walczak introduces application from February 25, 2009 for an April, 2009 date, from 10 AM to 10 AM in Schenley Park. Estimated participants, 200 to 300.

Officer acknowledges document.

Walczak: Special events committee granted this permit, did it not? Officer: it was reviewed but not issued because group did not pay the fee.

Walczak: Shows document with checkmark by "Status: approved" for overnight use of Schenley Park. Was approved March 31st of this year, is that correct? A: Yes.

[These are my raw notes from the courtroom; they will often consist or keywords and phrases and are not a comprehensive log or transcript.]

1:27 PM: First things first: attorneys for both sides say Judge Gary Lancaster has indicated he may rule from the bench this afternoon.

When I returned from filing my noon report, there were no seats free in the courtroom where I could plug in and blog, so here's a quick recap of what happened between 11 AM and the 12:30 one hour recess.

Attorneys for the protesters presented a series of witnesses to try to make the case that the city played favorites when approving permits to use Point State Park during G-20 week.ACLU Attorney Vic Walczak is attempting to show that the plaintiff's applications to use Point State Park from Sunday through Friday actually came before the request by PA State Senator Jim Ferlo.The plaintiff's witnesses appeared to show that after initially being told the park would not be available, Ferlo was told that it could have the park on Wednesday.

Assistant City Parks Director Michael Radley -- who is also director of the Great Race -- testified that Public Safety Director Michael Huss intervened. Radley told the court that Huss asked him if he could accommodate a group using Point State Park on Wednesday. Radley testfied that he told Huss "it won't be easy, but we'll get it done.

1:36 PM: "All rise. This honorable court is now in session."

Radley back on stand. Testifying that camping in city parks is prohibited "for the most part".

Lobel: let me read what you said in your deposition. "In a rare situation". Is that correct?So the director has the ability to grant permission to camp in a city park? A: "He does, by code".Section 473.04 of the city code: "no person in the park shall camp, except with the permission of the director".

Lobel: Are there any regulations to guide the director as to which people are allowed to camp and which are not? A: No regulations.Q: Do you know that in 2007 a group of students requested permission to park in a city park? Was it granted? A: It was.Why? A: it was a one night request and appeared to have a very low impact. Group agreed to hire an off duty city police officer to monitor their activity.

Radley acknowledges that no one from the city attempted to reach any similar sort of accommodations with CodePink or 3 Rivers Climate Convergence.

How many students camped on that occasion in 2007? A: A couple of hundred.Problems? A: They did not leave park as they found it. Quite a bit of refuse left behind.

City Assistant City Solicitor Michael Kennedy asks to do direct examination of Radley now, so as not to recall him later. Judge agrees.

Q: When conditions are ideal, when would you break down from the Junior Great Race? A: Sunday evening.Any adverse conditions could push the breakdown into late Sunday night and into Monday.Has concern about damaging sod and safety of workers if they had to breakdown in rain.

Judge: In your 13 years, how many times has it taken past 5 PM Sunday to break down from the Junior Great Race?Radley: indicates it hasn't happened in his 13 years.

Also testifies setup for the actual Great Race the following Sunday would normally start on Wednesday. Says it is being pushed back to Thursday to accommodate Ferlo's event.

Since 2007 -- when the group of students failed to clean up after themselves -- have any other groups been granted permits to camp in park? A: There have not.

1:48 PM Radley's testimony ends.

1:49 PM Peter Shell of the Thomas Merton Center is called as a witness by ACLU Attorney Vic Walczak.

[These are my raw notes from the courtroom; they will often consist or keywords and phrases and are not a comprehensive log or transcript.]

10:18 AM Judge Gary Lancaster takes the bench. Notes that parties have been continuing to negotiate in good faith, narrowing the issues. Says some permits have been issued since suit was filed.

Attorney Jules Lobell, Center for Constitutional Rights, says plantiffs want:-Permits for Sunday eve to Tuesday evening for Point State Park for Code Pink and 3 Rivers Climate Convergence; are no longer asking to camp there overnight.

-A permit for a protest march from the City County Building to 7th Street Bridge and to stop there for short rally, then disperse. He says the city unwilling to grant that; asking they are asking judge to do so.-the judge to issue a permit for camping in Schenley Park.

Witness: Francine Porter, Code Pink. 10:21AM.She's a registered critical care nurse and has been a member of CodePink for years. She's a coordinator of the local group of 350 members for past five years.CodePink founded to speak out against war in Iraq. Focus now is Iraq and Afghanistan.CodePink applied for two permits in early July for Louis & Clark Parklet, behind convention center for Monday 20th to Friday the 25th.Aims of their event: to be voice to speak on behalf of refugee crisis brought about by the wars...crisis that impacts women and children.Later, in 1st or 2nd week in August, applied for permit for Point State Park as well. First request hadn't been granted yet. Thought Point State Park would be farther away and still have good visibility.Application signed 12th of August, mailed August 14th to city.

City's Special Events Coordinator Nadine Brnilovich told her permits had been denied.

Hoping to create family-friendly non-hostile, non-threatening atmosphere. High visibility area would be good. An encampment with two large tents, lots of literature, speakers on impact of war on women and children.Would allow people people to become informed on G-20 policy impact on refugees. Have since compacted plans from five days to two days because of restrictions.When heard PA State Senator Jim Ferlo had been requested a permit for Wednesday, they told city there would beAsking for early evening Sunday to set up infrastructure of encampment through Tuesday evening, leaving the park at 7 PM each evening.No longer asking to camp overnight -- but need a way to secure their encampment equipment (overnights).

City said it would be difficult to set up in Point State Park on Monday or Tuesday because of the aftermath of the Junior Great Race.

Lobel: Did the city recently grant you a permit for the Louis & Clark Parklet for Monday, Tuesday, and Wednesday? A: They did.Q: Does that satisfy your need for Point State Park. She says it does not.

Lobel: asks about suitability of the Buncher lot on the Strip District. Porter answers by asking if he's ever tried to pitch a tent on concrete. Says would not be a family-friendly location.

10:41 AM cross examination by Assistant City Solicitor Michael Kennedy.Asks to confirm that CodePink is no longer asking for Thursday and Friday. She says that's because the city says it would not be available.Asks about her familiarity with The Great Race. She says she's run it thirty times.

He asks if she's familiar with time and effort involved in setting up and taking down event.Asks her familiarity with the Junior Great Race. Would she have any reason to believe the take-down would not take until through Monday morning.She says she doesn't understand why the takedown of the Junior Great Race would take longer than the Great Race.He says her attorneys may put those questions later to other witnesses.

Kennedy offers evidence of city time stamp on permit application -- ten days after it was mailed.She says the post office told her it would not have taken that long to arrive.

Kennedy asks, establishes that city is making available to CodePink: Tuesday in Point State Park, three days at the Louis & Clark Parklet, and the Buncher lot in the Strip District.

10:50 AM Cross examination by attorney for PA Department of Conservation & Natural Resources which actually controls the park.His questions establishes that securing the tents would require using stakes.

10:53 AM Re-direct by Lobel: if you are not allowed to use stakes, could you secure tents with sandbags? A: Probably.

-refusal to issue a permit to the Thomas Merton Center authorizing a march and assembly in downtown that is less than 0.7 miles away from the convention center on the afternoon of Friday, September 25th.

-refusal to allow demonstrators to erect overnight encampments and "tent cities" as a form of symbolic protest in Pittsburgh's parks, including Point State, Schenkey, East, and Riverfront Parks.

Thursday, September 10, 2009

The ACLU and groups planning G-20 protests will sue the City of Pittsburgh and the Secret Service in federal court Friday over what they say are denials of permits for their events.

The Thomas Merton Center alleges the city is denying reasonable access to be within "sight and sound" of the G-20 summit for the planned September 25th march from Oakland to Downtown. The city has acknowledged such access is required by court precedent.

Among the end-points for the G-20 protest march vetoed by the secret service, according to ACLU:

• Fort Duquesne Boulevard beteween 6th & 7th Streets

• Liberty Avenue between 10th and Grant Streets.

The Thomas Merton Center's Pete Shell says the Secret Service would allow the march to end at a Strip District parking lot on Smallman Street. Shell says, however, that would require marchers to cross the Allegheny River via the 6th or 7th Street Bridge, walk down east along on the North Side, come back across the river via the 16th Street Bridge, then head back towards town.

The American Civil Liberties Union and the Merton Center also say the city suggested ending the march on the North Shore walking trail, across the river from the David Lawrence Convention Center. Protest organizers argue that is not within reasonable sight and sound of the Convention Center.

Among the other groups joining in the lawsuit are Code Pink and 3 Rivers Climate Convergence. They want permits to stage gatherings in Point State Park and to camp in the park overnight.

With the summit just two weeks away, protest organizers are hoping for a quick hearing before a federal judge on their request for a court order.

As I was heading home from work, Mayor Ravenstahl's Press Secretary Joanna Doven sent out word that Pittsburgh Public Safety Director Mike Huss was available to brief the news media about the permits. Channel 4 Action News reporter Jon Griener is covering that right now. Jon e-mails that protesters will have access via the Strip District to parking lots on Smallman Street just across from the convention center. Jon notes that's within shouting distance, indicates the city isn't providing information yet on what march route it would allow. He also tells me that Director Huss is referring media questions about the lawsuit to the city Law Department.